Most entrepreneurs don’t understand the power of positive leverage. Here’s a typical situation:

After weeks of fund-raising, you find a brave investor who says “Yes, I want to invest.” He says he will give you an offer soon. You’re excited. A few days later he delivers a term sheet that you don’t like. The valuation is really low. Or the non-economic terms aren’t favorable. Your excitement turns to disappointment and frustration. This is the only offer you have so far. What do you do?

First, we hope you’ve been talking to several investors at the same time and creating a market for your shares. With an adroit touch, you can use this first offer to create the scarcity and social proof that drives other investors to say “yes”. At a minimum, you can use this offer to drive investors to make any decision at all — up or down. And keep improving your alternatives until you’ve a signed term sheet.

But let’s assume you don’t have any other offers and you have to negotiate with this investor. Or that this investor is your first choice — whether or not you have alternatives.

Positive leverage

This type of negotiation is similar to a hostage negotiation because you can’t walk away from your opponent. You can’t say, “Yeah, it’s okay, go ahead and kill the hostages, we’re not interested in your demands.”

When you have to negotiate without good alternatives, the tools of positive, negative, and normative leverage are essential. Positive leverage is your ability to provide things that your opponent wants. You have positive leverage when your opponent says, “I want to buy your car”, “I want you to release my friends from jail” or “I want to buy your shares”.

As soon as your opponent says he wants something from you, you have some positive leverage. You control what they want. You can grant them access or deny it. That’s why experienced opponents delay making offers — they don’t want to give you leverage.

In practice

How does positive leverage work in practice?

First, positive leverage should improve your psychology during the negotiation. You’ve gone from a situation where you want something from the investor to a situation where you both want something from each other. Your psychology is critical in a negotiation because “leverage often flows to the party that exerts the greatest control over and appears most comfortable with the present situation.”

Second, you can now identify other things that your opponent wants and deliver them. Maybe you’re working with a partner who is trying to get his first deal done at the firm. Help him succeed and help yourself in the process. Maybe you’re working with a firm who is excited about stealing a deal from a top-tier firm. Help them succeed. Maybe you’re working with a firm who wants to co-invest with a top-tier firm so they can show off to their LPs. Help them succeed.

Third, even before investors makes an offer, you gain a little bit of leverage every time they ask for something. Don’t try to use it after the first meeting. But if you’ve been talking to them for three weeks and they’re getting deeper and deeper into diligence, you should recognize and use your leverage. At a minimum, you should ask for information about their process and thinking at every step of the way.

1. John Doerr: The salesman for nerds

I’m going to keep my eyes on the videos coming out of TechCrunch Disrupt this week. The best talk on Monday was Charlie Rose’s interview of John Doerr.

I’ve always thought of John Doerr as a salesmen for nerds. And Doerr always looks at the big picture — I remember him talking about how the browser was going to be important again, well before Firefox emerged.

2. Gates convinces Jobs to give him 3 pre-release Macs

Watch how Gates manipulates Jobs hatred of IBM to get his way at 6:45.

Every entrepreneur should see Pirates of Silicon Valley. This made-for-TV movie from 1999 is amazingly well-done. It’s a dramatization of Steve Jobs and Steve Wozniak starting Apple; Bill Gates and Paul Allen starting Microsoft; and how Jobs and Gates collided.

The script and acting ring true. Wozniak writes that “the personalities were very accurately portrayed.” Steve Jobs actually invited Noah Wyle, the actor who portrays Jobs, to impersonate him at Macworld. And the negotiations are pretty realistic.

Watch the clip above and rent the movie if you like it — it’s cheesy but good.

“When I was at BuildOnline (my first company) and things went ‘pear shaped’ we called all of our customers and said, ‘I know that we signed contracts with you. The reality is that the market has changed and I need to change to the new realities. We committed to product features. I can’t ship those as promised. I’m sorry. Do you like our product & service? Yes? Ok, thank you. Listen, I know that if you like what we do then you’ll want a healthy supplier/partner. I need to be able to earn a profit and with the contracts we’ve signed I cannot. I either need to cut product development staff (and therefore can’t ship products as promised) or I need to be able to charge you slightly more for our service or for features you want to see so that I can make ends meet. Help me understand which you prefer.’ I lost zero customers. In fact, we built tighter relationships. I had no choice and as they say, ‘necessity is the mother of all invention.'”

Thanks to Atlas Venture for supporting Venture Hacks this month. This post is by Fred Destin, one of Atlas’ general partners. If you like it, check out Fred’s blog and tweets @fdestin. And if you want an intro to Atlas, send me an email. I’ll put you in touch if there’s a fit. Thanks. – Nivi

In Part 1, I discussed a few of the term sheet clauses that entrepreneurs should absolutely avoid; the wrong tradeoffs which later expose them to really “losing” their company. There are rational explanations for all of these, but, as we know, hell is paved with good intentions. Here are some more pathways to hell…

“Thank You and Good Luck” for options: Limited exercise period

I am going to get some of my colleagues mad at me here. I see many stock options plans where, when employees leave the company, they have a short time window (usually 3 months) to exercise the options they have vested. This means they have to pay the strike price that the options were issued at and acquire the shares (strike price could be $3 for shares valued at $4 at the last round).

That forces startup employees to fork out cash and often crystallizes tax liabilities. It feels harsh to me. I think options should be exercisable over long periods of time, so people who have contributed to the wealth creation process can exercise when the value is realized (i.e. the company is sold) and it becomes a cash-less exercise for them.

Things I cannot get too excited about

Multiple liquidation preferences: This means investors get a multiple of their money back before you see anything. I don’t like these conceptually, they feel very un-venture to me, but they are only part of the deal. If you push super hard for a $100M valuation but have to accept multiple liquidation preferences as a trade-off, it’s your call. If the company goes public (at which point preferred shares convert into ordinary shares and the liquidation preferences disappear), you win. If the liquidation preferences are negotiated away in a subsequent round of financing, you win. Personally, I have a strong preference for simple terms at the right price from the outset.

Cumulative dividends: Sometimes an 8% dividend is slapped on, and it accrues over time when it isn’t paid. Again, this is not appropriate for most venture deals, but it may be part of an acceptable trade-off.

The trap of complexity

More than anything else, I find the real danger is complexity. When you need 3 full days of modeling to come to grips with a cap table, or when no-one can agree anymore on how clauses should be applied, you are in trouble. You will spend more time discussing internally how clauses should be applied than focusing on that critical acquisition you should be closing. I have seen cases where you needed robust macros to model outcomes. How about adding an exit-value-dependent management carve-out to a participating liquidation preference reverting linearly above 3X return on top of a French legal requirement that the first 10% gets distributed to all shareholders equally ? I have modeled this and it’s simply not worth it.

Value is not created by arcane legal language but by nailing business execution and growth. Keep it simple and keep yourself focused on the right elements.

Get good advice (duh!)

I was at Seedcamp on the VC panel with Fred Wilson and a few others recently and there was a lot of talk about terms and how not to get screwed (evil evil VCs…). I will repeat the advice I gave then: you want to protect yourself adequately, get a good lawyer. You will not out-compete us on terms negotiation. I use Tina Baker at Brown Rudnick in the UK and Karen Noel / Olivier Edwards at Morgan Lewis in Paris; they are great, go talk to them.

Having said that, it is completely your responsibility to understand what you are signing, and it is up to you to push back. Read the documents, ask questions about everything you do not understand. Ask your lawyer: where does this document create risk for me, both on my income stream and my ownership. How does this go wrong and how do I protect against it? This is advice you are seeking, not an outsourcing service.

And remember, there is no such thing as standard terms. May the force be with you.

If you like this post, check out Fred’s blog and his tweets @fdestin. If you want an intro to Atlas, send me an email. I’ll put you in touch if there’s a fit. Finally, contact me if you’re interested in supporting Venture Hacks. Thanks. – Nivi

Last week, I spoke to a startup that was in discussions to license one of their products to a competitor. The competitor asked for historical sales data about the product, and the startup was wondering whether they should share that information with a competitor. Our conversation went like this:

The book I mentioned in the conversation is Bargaining for Advantage. It answers almost every negotiation question. I read the book cover-to-cover — that’s rare.

The answer to this particular problem starts on page 68 of Bargaining for Advantage and there’s a good summary on page 72:

“The solution here is to take your time and build trust step by step. It helps if you can use your relationship network to check the other party out. If that is not possible, take a small risk before you take a big one. See if those on the other side reliably reciprocate in some little matter that requires their performance based on trust. If they pass the test, you have a track record on which to base your next move.”

Almost every problem you run into in a startup is not unique. Someone else has had the same problem and knows how to solve it. With the right advisors (books, blogs, people), you can solve it the easy way, instead of the hard way (experience and failure). Save the risk and innovation for the important stuff.

Jim Pitkow recommended this book while we were raising Songbird‘s Series A. Since then, I have referred to it again and again while writing posts for Venture Hacks and answering questions from entrepreneurs.

Make sure you don’t read this book if these questions are irrelevant to you: Should I be the first to open? Should I open optimistically or reasonably? What sort of concession strategy works best?

Here’s a small sample of what you’ll find in Bargaining for Advantage:

What is leverage?

Everybody talks about leverage in negotiations but very few people know what it means. My favorite chapter, “Leverage” defines it (emphasis added):

“A better way to understand leverage is to think about which side, at any given moment, has the most to lose from a failure to agree… the party with the most to lose has the least leverage; the party with the least to lose has the most leverage.

“Leverage often flows to the party that exerts the greatest control over and appears most comfortable with the present situation.

“To gain real leverage, you must eventually persuade the other party that he or she has something concrete to lose in the transaction if the deal falls through.

“Positive leverage: Every time the other party says “I want” in a negotiation, you should hear the pleasant sound of a weight dropping on your side of the leverages scales. [Positive leverage is the ability to provide things your opponent wants.]

“Negative leverage: Threat leverage [that] gets people’s attention because… potential losses loom larger in the human mind than do equivalent gains. But a word of warning is in order: Making even subtle threats is like dealing with explosives. [Negative leverage is the ability to hurt your opponent.]

“Normative leverage: [Normative leverage is the ability to apply general norms or your opponent’s standards and norms to advance your position.] You maximize your normative leverage when the standards, norms, and themes you assert are ones the other party views as legitimate and relevant to the resolution of your differences. Attack [your opponent’s] standard only as a last resort.

“This way of thinking about leverage also points to more sophisticated ways of enhancing your leverage that go beyond just improving your BATNA. Your goal is to alter the situation (or at least the other party’s perception of the situation) so you have less to lose, the other side has more to lose, or both.”

Bargaining for Advantage includes detailed examples that make the theory of leverage concrete.

Read the book to learn about opening, making concessions, closing, the rogue’s gallery of tactics, …

“We took the approach of wanting to get to know the different partners and the different possibilities and to see where there was the best fit. Partnerships take a lot of work—you want to go out on a few dates before you get married. Yes, we dated a few people but didn’t get married… and so there were a few unhappy girlfriends out there. The choice wasn’t an economic choice, it was a customer choice.”

Summary: A deal is only as good as its best alternative. Keep improving your alternatives until you have a signed term sheet. And keep developing your current offers or they will die. Finally, don’t say “shopping around”, it puts investors off their stroke.

A reader asks:

“I have spoken to only one person regarding an investment, and they immediately said they would back my company. Should I contact more than one potential investor, i.e. shop around for someone who has experience in this space, and might be capable of injecting more capital for bigger goals? The product looks good, so I’m confident I can successfully engage other potential investors.”

In your mother’s womb, you learned that a chain is as strong as its weakest link. Now, in the awesome womb of Venture Hacks, you learn that,

A deal is as good as its best alternative.

Receiving a term sheet is a significant milestone. Receiving a verbal offer or an indication of interest is also a significant milestone.

But you should keep engaging alternative investors until you sign a term sheet. Sometimes, you should keep engaging alternative investors until you close (assuming the term sheet you signed doesn’t have a no-shop).

“Research has shown that, with leverage, even an average negotiator will do pretty well while, without leverage, only highly skilled bargainers achieve their goals.”

Spending time developing alternatives is as good as spending time developing your current offer. It increases the chances of closing your current offer. It closes your current offer faster. And it improves the terms of your current offer. Keep this in mind if you “don’t have time” to develop alternatives.

Develop your current offers or they will die.

Keep developing your current and pending term sheets while you engage alternative investors. If you sit on a term sheet for 2+ weeks, there’s a good chance, say 33%-50%, that the offer will disappear because the investor will move on to a shiny new company and his enthusiasm for your company will wane. Not to mention that most term sheets expire after a couple weeks.

Don’t let offers cool while while you warm up alternatives. Shopping around for Gucci underwear is effective as long as stores have it in stock. It’s not effective if each store runs out of inventory while you’re visiting its competitors.

The best way to keep investors warm is to focus on fund-raising so you can (1) get all your offers at once and (2) pick the best one before any of them cool down.

Buy a little time after your first offer.

When you receive your first offer, you can buy 1-2 weeks of time by saying,

“We’ve promised to close out conversations with a few investors and we need to honor our promise.”

“We’ve committed to a partner’s meeting next week and we need to honor our commitment.”

No investor is going to ask you to break your previous commitments. This little tactic buys you time and increases your social proof and scarcity.

You only need a few offers to clear the market.

How do you know if you’ve cleared the market? You need two or three offers from investors who make it a habit to invest in startups at your stage. These investors should create enough demand, social proof, and scarcity among themselves to improve your terms and clear the market.

Finally, receiving more than two or three offers means you will have to disappoint more investors. Turning down investors is surprisingly hard.

You’re not “shopping around”.

Finally, don’t use the words “shopping around” or “auction” with investors. Their reaction to these terms is,

“What am I, a bag of money? I can only get in this deal if I pay the most?”

You’re not “shopping around”, you’re “looking for the right partner”. While you’re talking to investors, you can define the right partner in terms of domain experience, or someone who wants to invest more/less money, or someone who has a history of backing the founders, or anything but: the guy who will pay the most.

“1. VC Negotiation Is An Art Form: As an entrepreneur, there are few things more “nuanced” that you’ll deal with than raising institutional capital. Even if you decide not to raise venture capital, a lot of these skills and deal-terms will likely show up in other dealings you have (strategic partners, M&A transactions, etc.).

“2. The Devil’s In The Details: Most entrepreneurs focus too much energy on the “obvious” things like valuation. Fact is, there are other, non-valuation terms in the VC deal (vesting, stock option pool, liquidity preferences, etc.) that have a significant impact on the economics of your deal. It’s easy to lure yourself into thinking you should solve for the highest valuation. But, in most cases, that’s sub-optimal.”

Your current valuation is irrelevant if you are terminated and you lose all your unvested stock. Your current valuation is irrelevant if the board forces the company to raise a low-valuation Series B from existing investors by rejecting offers until the company is almost out of cash.

“3. Great Advice Is Hard To Find: As it turns out, good advice in the VC business is hard to find. I would define good advice as a combination of competency (i.e. well informed) and objective (i.e. non-conflicted). You can get close sometimes (via lawyers, advisors, etc.) but it’s really hard to find great advice.”

The amount of advice on entrepreneurship on the Web is exploding. Some of it rocks. Some of it sucks. Advice is only as good as its source. Our source is me and Naval—we’re trying not to suck.

“4. It’s Not Enough To Be Smart: It’s important to remember that regardless of how smart you are, VC negotiation is not just a matter of raw intelligence. Sure, it helps to have a few brain cells to understand the dynamics of a deal, but a lot is hidden away in the dark corners that you only ever learn by doing it. It’s also important to remember that the VCs do this for a living. Hopefully, you don’t (you’re building businesses for a living). You may be twice as smart as they are, but you’re still at a disadvantage. Try to even the playing field as much as you can.”